128 



WARRANTY; SALE AND WARRANTY BY AGENT, ETC. 



Not covered 

 by a warranty. 



In what they 

 consist. 



How far the 

 loss of an eye 

 is patent. 



Patent Defects. 



A general warranty does not cover fatent defects, being 

 such as are obvious to the buyer. As if a horse warranted 

 perfect be minm an eye or a tail (/), or a house warranted 

 to be in perfect repair, be without roof or windows {g), or, 

 " as if one sells purple to another, and saith to him that 

 this is scarlet, this warrant is to no purpose, for that the 

 other may perceive this, and this gives no cause of action to 

 him. To warrant a thing that may be perceived by sight 

 is not good" ill). 



From these examples the proper principle regarding 

 patent defects may clearly be drawn ; they must be such 

 defects as a man, unless he is perfectly incompetent to con- 

 duct business, cannot help observing. For where a person 

 sees, or has the opportunity of seeing, goods before purchase, 

 caveat emptor is the rule of law ; and a man who does 

 not perceive the loss of an eye or tail in a horse, or the 

 absence of the roof or windows from a house, or does 

 not distinguish between purple and scarlet by the light of 

 day, cannot expect the law to give him any assistance, as 

 every man making a bargain is expected to have ordinary 

 perception. Whether a defect is patent or not, or the pur- 

 chaser has used ordinary care, is a question for the con- 

 sideration of the jury. 



Although the loss of an eye is a breach of a warranty 

 of soundness (*'), it has been laid down, that "where one 

 buys a horse upon warranting him to have both his eyes, 

 and he have but one eye, he is remediless ; for it is a thing 

 which lies in his own conusance, and such warrant}'' or 

 affirmation is not material nor to be regarded " if). But 

 this seems to assume that the eye has entirely disappeared, 

 or has been so ohrioushj damaged, that it must he in the 

 conusance of the buyer ; and nothing is said with regard to 

 a loss of sight, where there is little apparent injury to the 

 eyes ; for a horse may appear to the majority of people 

 perfect in his e\'es, and yet have lost the sight of one or 



both. Such IS 

 "glass-eye" {I), 



the 



case m gutta sercna, vulgarly called 



which is a palsy of the o^jtic nerve or retina. 



(/) 2 Bla. Com. 165 ; and per 

 Hank, J., Year Book, 13 Hen. 4, 

 p. 1. 



{</) Dyer v. Hargrave, 10 Vesey, 

 507; 8 R. E. 36. 



(A) Bailey T. llcrreU, 3 Bulst. 95. 



(j) Untterjieldv. Horrounhs, 1 Salk, 

 211. 



(i) Year Book, 13 Hen. 4, p. 1 ; 

 Bayley v. Merrell, Cro. Eliz. 389. 



(I) Gutta Serena, ante, p. 82. 



